State v Morosake [2016] PGNC 267; N6462 (1 September 2016)

N6462

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 163 OF 2014

THE STATE

V

KONTE MOROSAKE

Popondetta: Auka, AJ
2016: 19^th, 21^st & 27^th July
& 1^st September

CRIMINAL LAW – Sentence – Accused a Policeman place in charge of looking after bail monies – Placed in position of trust and authority – Pleaded guilty to charge of Misappropriation – Monies applied to his own use – Restituted amount dishonestly applied before sentence – Appropriate sentence considered – 2 years head sentence – Fully suspended on condition that offender enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.

Case Cited:
Aria Aihi v. The State [No.3] [1982] PNGLR 92
Doreen Lipirin v. The State (2001) SC 673
Lawrence Simbe v. The State [1994] PNGLR 38
Public Prosecutor v. Bruce Tardew [1986] PNGLR 91
The State v. Alphonsa Magun (2011) N4524
The State v. Emba (2001) N5012
The State v. Livingstone Haurahaela (2006) N 100
Wellington Belawa v. The State [1988-89] SC 496

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

1^st September, 2016
1. AUKA AJ: The accused pleaded guilty to one count of Misappropriation Contrary to S. 383 A (1) (a) (2) (c) of the Criminal Code Act.

2. The brief facts of the case as put to the accused during the arraignment were that the accused is a Policeman based at Popondetta Police Station and at the relevant time was attached to the prosecution section and was tasked to look after bail monies for various applicants. Between the 10^th of February 2012 and 13^th March, 2013 a total of 44 defendants paid bail monies totalling to K30, 800. 00. The accused was the only person who had access to the key of the door to the room where the monies were kept. Having easy access to these monies, the accused took K4, 600. 00 and used it to his own purposes. Investigation was carried out and it concluded that the accused took the missing money of K4, 600. 00 and used it for himself. Therefore the accused was charged for misappropriating K4, 600. 00, the property of the 44 bail Applicants. And the accused committed the offence in breach of a position of trust.

3. On his statement on Allocatus, the accused said sorry for his action and asked the Court to have mercy on him and place him on probation. He said he has the money and is ready to make the repayment within a week.

4. On the request of Mr. Yavisa of Counsel for the accused, the court directed the Probation Officer to prepare and file both the Probation Report and Means Assessment Report and directed the matter to return on Thursday, 21^st July, 2016 at 1:30pm. I am now in possession of both reports. I have perused both reports and I find that the reports are in favour of the accused. His financial situation was covered in the means assessment report showing that he is capable of repaying the full amount. The probation report strongly recommended that the offender is a very suitable person to be considered for probation.

5. On 21^st July, 2016 the court heard Counsels on Sentence. Mr. Yavisa submitted that the accused is 40 years old from Koseno village in Kainantu area of Eastern Highlands Province. He is married with six (6) children who are mostly of young age and attending school. He is a member of the Lutheran Church. He has been a Policeman for 20 years and of the 20 years, he has served 17 years as a police prosecutor at Popondetta Police Station.

6. Mr. Yavisa submitted and urged the Court to consider in accused’s favour the following matters;

1. That accused pleaded guilty to the charge and saved court’s time and money.
2. That the accused freely admitted the offence to the police during the Record of Interview.
3. That he showed remorse
4. That he is a first time offender
5. That he is a long serving policeman for 20 years
6. That he has children who are mostly young and attending school
7. That the accused have fully repaid the amounts of money misappropriated.
   

7. Mr. Yavisa referred the Court to the National Court case of The State v. Emba (2011) N5012. In that case the accused misappropriate K50, 000. 00. He pleaded guilty to the charge and was sentenced to six (6) years and the sentence was fully suspended on conditions including restitution of the money misapplied. Counsel submitted that a suspended sentence should be imposed on the accused.

8. Ms. Gore of Counsel for the State submitted that the following aggravating factors should be considered against the accused in deciding the appropriate sentence;

1. That accused acted in breach of a position of trust which is a serious matter. However she submitted that the court has discretion to impose a appropriate sentence.
2. That the accused have repaid the money fairly late and as such his expression of remorse is not genuine.

9. Ms. Gore referred the court to the National Court case of The State v. Livingston Haurahaela (2006) NC 100. In that case accused pleaded guilty to the charge of misappropriating K1200. 00. The accused was employed by the National Department of Finance and Treasury as an acting examiner based at Kikori, Gulf Province. One of his duties was to collect public monies into the state treasury through the Kikori District Treasury office. Such funds included police and court bails and court fines. Instead of completing the relevant collectors statements for those monies and have them paid into the trust account kept at Kerema, he kept them in safe and applied them to his own use. The court sentenced him to 18 months. The sentence was fully suspended with conditions.

10. The offence of misappropriation is prescribed by s. 383A (1) and (2)(c)(d) of the Criminal Code. This provision states in relevant parts:

“ 383A. Misappropriation of Property

(1) A person who dishonestly applies to his own use or to the use of another person;

• (a) Property belonging to another ;or
  
• (b) ...........................
  

Is guilty of the crime of misappropriation of property’

(2) guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:-

• (a) ................; or
• (b) Where the offender is an employee and the property dishonestly applied is the property of his employer; or
• (c) Where the property dishonestly applied was subject to a trust, direction or condition; or
• (d) Where the property dishonestly applied is of a value of

K2, 000. 00 or upwards
11. It is an established principle that the maximum penalty should be reserved for the worst type of case, Goli Golu v. The State [1979] PNGLR 653. In my view the accused case is not the worst type of case.

12. Is is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

13. The Supreme Court decision in the case of Wellington Belawa v. The State [1988-89] PNGLR 496, is the leading case authority in this jurisdiction for the offence of misappropriation and its sets out the sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply.

14. In the case of Wellington Belawa (supra), the Supreme Court recommended that the following factors should be taken into account when determining which penalty to impose on an offender and these are;

1. The amount taken;
2. The quality and degree of trust reposed in the offender;
3. The period over which the offence was perpetrated;
4. The use of which money or property dishonestly taken was put;
5. The effect upon the victim;
6. The impact of the offence on the public and public confidence;
7. The effect on fellow employees or partners;
8. The effect upon the offender himself or herself
9. The offender own history
10. Whether restitution was made to the victim;
11. Matters of mitigation special to the offender himself or herself such as ill health, young or old age, effect of excessive nervous strain, cooperation with police
    

15. The Supreme Court in the same case of Wellington Belawa (supra) also recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between;

1. K1. 00 and K1, 00. 00, a gaol term should rarely be imposed;
2. K1, 000. 00 and K10, 000. 00, a gaol term of up to 2 years;
3. K10, 000. 00 and K40, 000. 00, a gaol term of 3 to 5 years;
4. K40, 000. 00 and K150, 000.00, a gaol term of 3 to 5 years.
   

16. It is generally accepted now that while the factors set out in Wellington Belawa’s case are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentences due to the prevalent of the offence. However, the Court still has a considerable discretion under s.19 of the code to impose an appropriate sentence, depending on the particular facts and circumstances of a particular case.

17. Applying the factors recommended in Belawa’s case to the circumstances of the present case, this court finds that the following factors are relevant and applicable and can be considered either in favour or against the accused on sentence.

18. The factors which the Court considers in favour of the accused are;

1. Accused made early admission to the Police during the Record of Interview.
2. Accused pleaded guilty and saved Court’s time and State’s money;
3. Accused is a first time offender and has no prior conviction;
4. Accused will continue to suffer personal shame and disgrace because of his conviction;
5. Accused expressed remorse and asked the Court for mercy;
6. Accused repaid the full amount of K4, 600. 00 misappropriated before sentence. Ms Christian, Acting Registrar of Popendetta National Court reported that the accused had repaid all monies misused. Mr. Yavisa of counsel for the accused produced the Original Copy of the deposit slip to the court to confirm that accused had repaid all the monies misapplied.
   

19. The factors which the Court considered against the accused on sentence are:

1. A substantial amount was taken during a period of one (1) year.
2. There was a great degree of breach of trust in that his superiors had the trust in him and gave him the responsibility to look after monies and expected him to set the standard and be a role model for honesty and trust worthy. However, when he took the money and applied it to his own use, he abused that trust and confidence placed in him.
3. His Superior within the police hierarchy are dismayed at his actions.
4. The accused is an educated person who is able to tell what is right from wrong.
5. That the offence is a prevalent offence.
   

20. Having considered the factors for and against the accused, I am also required to weigh the consequences of sending offenders to prison for “non violent crimes” and those which have been categorised as ‘violent crimes”. In the case of Doreen Lipirin v. The State (2001) SC 673, the Supreme Court highlighted the need to give serious consideration to alternatives to prison sentences to non-violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and avoid the risk of turning an offender into a hard-core criminal.

21. I agree with what the Supreme Court said in the above case and apply it in the present case.

22. The trend of sentencing on misappropriation cases depends entirely on the facts of each case.

23. Let me quote a few cases which illustrates the trend of Sentencing in Similar misappropriating cases. In the case of The State v. Alphonsa Magun (2011) N4524, the accused was a Policewoman attached to the prosecution section of the Royal Papua New Guinea Constabulary based at Bialla Police Station. As a Police Prosecutor she was given the added responsibility of looking after bail monies for various bail applicants. The bail monies were locked inside a safe which was kept in the Police Station Commander’s office. Only the accused being in charge of the bail monies had access to those monies. Having access to those monies, the accused took a sum of K2950. 00 and used it to pay certain Police reservist who were helping and performing police duties without pay. State alleged that those monies did not belong to the accused but were monies belonging to bail applicants and remandees which were held in trust. She pleaded guilty to the charge and there was full repayment made before the arrest of the accused. The accused was sentenced to 2 years imprisonment but the term was wholly suspended because she was already dismissed from the Force as the Court considered that as sufficient punished for the offence committed. The other factor that caused the court to suspend the term fully was that the accused had 5 children including a disabled child who was going to be deprived of a mothers care, love and warmth. So pursuant to s.19 (d) (I) of the Criminal Code, the accused was sentenced to 2 years which was wholly suspended on condition that she enter into her own recognizance with surety of K100. 000 which is to be paid as a court fine and to be of good behaviour and to keep peace for six (6) months.

24. In the case of Stanley Poke v. The State (2010) SC 1055, the appellant a Police Sergeant received a cheque from Southern Highlands Provincial Government for K20, 400. 00. It represented travelling allowances for him and 16 other policeman of K1, 200. 00 each. The Appellant only paid K920. 00 to each of the policeman and himself and misappropriated the reminder of K4, 480. 00. He was found guilty after a trial and was sentenced to 2 years which was fully suspended. He appealed against his conviction but was dismissed.

25. Taking into consideration all the particular circumstances of the present case, the trend of sentencing in some similar cases which have cited and the sentencing guidelines in Wellington Belawa’s case, I consider a sentence 2 years in hard labour appropriate. Accordingly I impose a sentence of 2 years imprisonment in hard labour.

26. Should I suspend all or part of the term? I have considered the principle of suspending sentences in the cases of Public Prosecutor v. William Bruce Tardew (1986) PNGLR 91 and what the Supreme Court said in the case of Doreen Lipirin v. The State (2002) SC 67,3 and I propose to suspend the sentence fully on terms, as it will in my view promote deterrence, reformation or rehabilitation of the accused and promote restitution of the money.

Apparently the accuse in this case have fully repaid the money before the imposing of the sentence.

27. The following conditions shall apply;

1. The accused shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.
2. The accused shall not change his residential address at Popondetta unless he has given the National Court Registry at Popondetta reasonable notice of his intention to do so and the reason for the proposed change.
3. The accused shall not leave Popendetta town without the leave of this court during the period of Suspension.
4. The accused shall not consume alcohol or drugs.
5. If the accused breaches one or more of these conditions, he shall be brought to the National Court to cause why he should not be detained in custody to serve the suspended term of 2 years.
   

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused